Estate administration and the related planning process is not just about distributing property when you die. Estate law is a lot more complicated than that.
Estate planning and properly drafting a will or trust is necessary for avoiding probate issues. Most people are advised to avoid probate as much as possible, but not a lot are familiar with such a legal proceeding. As such, this article will briefly discuss when probate and estate administration becomes applicable.
When does a California probate begin?
Only when the appointed executor formally files a petition for probate will the probate procedure begin. In the absence of an executor of a will, a member of the family could be appointed by the probate court as an administrator who shall carry out the same tasks. The estate executor or administrator is formally granted authority over the estate assets of the decedent once the court issues the necessary Letters Testamentary.
Keep in mind that the executor or administrator must file the court forms in the county where the deceased person lived. In most probate proceedings, witnesses would often be asked to establish the validity of the last will and testament of the deceased. Probate laws would also require that beneficiaries be given formal notice. If there are debts, such notice shall also be given to any creditor concerned.
When is probate law applicable?
Probate administration is not necessary for accounts where the beneficiary is payable-on-death or assets held in trust (revocable living trust). Furthermore, if the deceased loved one has assets in a joint tenancy, in a living trust, or as survivorship community property with the spouse, assets need not undergo a probate case. The same is true for assets and personal property inherited by a surviving spouse, particularly those transferred through a Spousal Property Petition. While transferring through such would also involve the probate court, this legal process is much quicker and simplified.
If the probate estate is less than $166,250, assets may either be claimed through an affidavit or sworn statement or a streamlined summary probate process. An estate attorney can explain this in more detail.
A probate case in California will generally be handled pursuant to the Independent Administration of Estates Act, which allows the executor to attend to probate matters without having to bring every single one to court. The appointed executor may approve or reject claims from a creditor, pay relevant estate taxes, and sell estate property, pay taxes, and approve or reject claims from creditors without being supervised by a probate court. Supervision will depend on the circumstance. The courthouse, for instance, must first approve plans to sell real property.
Avoiding probate is not impossible. You would likely create a will to be able to appoint heirs and have someone make decisions for you when you die. When dealing with probate, wills, and trusts, get legal help from experts on relevant state law.
For any questions on probate and estate planning, or even on the power of attorney, succession, living wills, or types of trusts, contact our law firm. Call us at Moschetti Law Group to consult with a reliable probate lawyer in California